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2001-2011: A decade of civil liberties' erosion in America -- Part Two

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(This is part two of a three-part series. Click here to read Part One)

In the last ten years we have seen a steady erosion of the fundamental rights and civil liberties, all in the name of national security. Peacemaking and whistleblowing has been virtually criminalized. FBI agents encouraged to search your trash, public databases just to sniff around for crime. Obama administration wants to read your email and search your laptops.

Criminalizing peacemaking

In June 2010, the Supreme Court exposed Americans to jail sentences of up to 15 years just for giving advice to groups the U.S. government considers untouchable. In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court, Georgetown Law Professor David Cole warned that the federal law against providing "material support" to U.S.-designated terrorist groups could be used to improperly target and prosecute a whole range of humanitarian, human rights and peace advocacy groups based on protected exercise of speech and other First Amendment rights.  

The Patriot Act has broadened the "material support" concept to encompass "expert advice and assistance" to "foreign terrorist organizations" as designated by the Secretary of State. As journalist Courtney Martin noted, "The definition of material support includes everything from providing aid to distributing literature to political advocacy."

During arguments in February 2010, Solicitor General Elena Kagan, defended the law and urged a broad interpretation that would allow prosecution of a U.S. citizen who filed a legal brief on behalf of a terrorist organization. "What Congress decided," Kagan told the court, "is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs."

In Holder v. Humanitarian Law Project, the court ruled that the USA Patriot Act's expanded definition of "material support" for "foreign terrorist organizations" passes Constitutional muster. The broad wording of the statute not only makes it a crime to support violent activities, but also prohibits Americans from offering "services" or "training, expert advice or assistance" to any entity designated as a terrorist group.

In a 6-3 opinion written by Chief Justice John G. Roberts Jr., the court essentially dismissed a challenge to the material support law brought by the Humanitarian Law Project. The project wanted to advise the Kurdistan Workers' Party (PKK) -- which for years has been on the U.S. terrorist list -- on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government.

Justice Breyer, who was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor, proposed a narrower interpretation of the material support law: Individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence.

The Supreme Court decision essentially makes advocacy of peace and humanitarian issues illegal with respect to the 40 or so designated groups.

To borrow Joshua Holland, the material support law essentially criminalizes promoting dialogue in conflict zones and undermines efforts to provide nonviolent solutions to previously violent groups, equating such actions with trafficking weapons.

All kinds of missionaries, fair-election proponents and humanitarian workers could be placed in jeopardy. People like Three Cups of Tea author Greg Mortenson could be in trouble since he has had to meet with a variety of foreign country nationals in war zones to successfully formulate consensus to build schools for girls in Pakistan and Afghanistan. So could former President Jimmy Carter who engages in pro-democracy efforts to monitor election fraud in many places in the world.  

Civil liberties advocates said they also feared repercussions for U.S.-based critics of the Israeli government, who might be charged with aiding Hamas, which Washington has designated as a terrorist group. One such critic is former President Jimmy Carter, whose private Mideast diplomatic efforts have included contact with Hamas.

The ruling "threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence," said Carter, whose organization filed arguments with the court.

Since 2001, Islamic charities have struggled to deal with the uncertainty caused by the material support provision. According to the Bill of Rights Defense Committee, "Muslims fulfilling their obligation to contribute to [charity]"risk inadvertently supporting a current or future [Foreign Terrorist Organization]. In 2004, in order to avoid this, Muslim leaders asked the DOJ for a list of acceptable charities. The DOJ responded that their request was "impossible to fulfill' and that it was "not in a position to put out lists of any kind, particularly of any organizations that are good or bad.'" Several people have already been jailed in the United States for their charitable activities in the Islamic world. [1]

Criminalizing Whistleblowing

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Author and journalist. Author of Islamic Pakistan: Illusions & Reality; Islam in the Post-Cold War Era; Islam & Modernism; Islam & Muslims in the Post-9/11 America. Currently working as free lance journalist. Executive Editor of American (more...)
 

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This ongoing series takes a good look at what has ... by Michael Germain on Friday, Aug 26, 2011 at 8:42:19 AM